It’s May. Edward Elgar’s “Pomp and Circumstance” is on an endless loop for the near future as our High School Seniors are honored for earning their diplomas. Our focus is on them for their achievements. But the world being what it is today (and, to be fair, what it has been in the past as well), it should not be too surprising to see political activism creep into graduation speeches, clothing adornments and general graduation activities. School boards are faced once again with the challenge of how to address these messages and protests in an appropriate, and legal way.
As established in Tinker v Des Moines Independent Community School District, 393 US 503 (1969), students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court determined in order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. A fear of disruption was not enough. So long as the speech in question is not conveyed in an obscene, profane, lewd or vulgar manner, (see Bethel Sch Dist v Fraser, 478 US 675) or patently in opposition to the educational mission of the school through the promotion of illegal activities (see Morse v Frederick, 551 US 393), grounds for banning first amendment messaging is very limited.
In the vast majority of cases, graduating students choosing to exercise first amendment rights by wearing a button, or other adornment, including items considered religious or cultural regalia, so long as they are not significantly causing disruption, can do so without repercussion.
Regulation of a commencement speaker’s speech may involve a different analysis. In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, it was determined that when a student is using a school forum to exercise their first amendment rights, the district can have more control. This does not require schools to regulate speeches of students, but allows for it. Thus, there can be an important distinction between regulation of a student attending graduation and using passive speech such as buttons, regalia, or messages on their mortar boards, and regulation of a student (or adult) speech given at a school sponsored graduation. If a district chooses to be more regulatory in speeches given at a graduation -essentially reviewing and vetting speeches before they are given, the district must be sure they are applying their review evenly to all speeches, and not limiting the speech based on viewpoint.
If you have questions on this issue or other legal matters, please contact MASB legal staff.